CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 18131/91                       by A.S.                       against Finland         The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr.    H.C. KRÜGER, Secretary to the Commission.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 March 1991 by A.S. against Finland and registered on 25 April 1991 under file No. 18131/91;         Having regard to   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 February 1992 and the observations in reply submitted by the       applicant on 13 April 1992;         Having deliberated;         Decides as follows: THE FACTS         The applicant is a Finnish citizen born in 1936.   He is a customs inspector. Before the Commission he is represented by Mr. Markku Fredman, a lawyer practising in Helsinki.         The facts of the case, as submitted by the parties, may be summarised as follows.   Particular circumstances of the case         In March 1989 the applicant requested the County Administrative Board (lääninhallitus, länsstyrelsen) of the County of Uusimaa to grant him permission to have his surname changed to "Tawaststjerna", a name used by his ancestors.   The applicant further referred to practical inconveniencies in using his present name of old Swedish form, as it is less known and, because of pronunciation difficulties, easily misspelt, as (list of several mis-spellings).         By an advisory opinion of 19 April 1989 to the County Administrative Board the Advisory Name Board (nimilautakunta, nämnden för namnärenden) objected to the change, as it had not been shown that the proposed name had been in established use by his ancestors.   The Board noted that the ancestor to whom the applicant referred had been born out of wedlock.   It further had regard to the fact that the name had belonged to very distant ancestors of the applicant and that the expression "ancestor" in the Surname Act (sukunimilaki 694/85, släktnamnslagen 694/85) does not include all direct ancestors of an applicant, without any limitations.   The Board referred to Section 10 para. 2 of the Act.         During the subsequent exchange of views between the applicant and the Name Board the applicant on 14 June 1989 stated that his present name had given rise to a pejorative nickname, "kirnu" (Eng. churn) derived from "Ts....".   He contended that the distant relationship with his ancestors could not be interpreted to his detriment.   He further contested that his ancestor had been born out of wedlock. He referred to the result of a genealogical investigation submitted to the County Administrative Board already as an annex to his request and questioned on what grounds the Name Board had come to another conclusion.         The Name Board on 25 October 1989 contended that the proposed name was inappropriate and that the request should not be granted. The Name Board noted that the applicant had put forward a weighty reason for his request, that is the obscure character of his present name. However, although the applicant was a descendant of an ancestor named T....... who died in 1773, the relationship between the applicant and that ancestor was remote. Moreover, the proposed name could result in inconveniences similar to those caused by the applicant's present name.         On 21 November 1989 the applicant - following an expert opinion submitted to the Name Board by a member of that Board - alleged that that opinion was partial.   He further stated that his present name was causing delays in his mail because of spelling difficulties.   However, he changed the proposed name to "T........" in order to comply with the spelling form recommended by the member of the Name Board.         On 26 January 1990 the applicant made further submissions to the County Administrative Board, arguing that he had complied with all criteria set out by the Name Board.   He further referred to a telephone conversation with a member of the Name Board according to whom a further criterion taken into account by the Board was the old-fashioned character of the proposed name.   This criterion, however, was not stated in its opinions.         On 12 February 1990 the County Administrative Board, in application of Section 10 para. 2 of the Surname Act, rejected the applicant's request, finding that it had not been shown that the proposed name had been in established use by his ancestors, as the ancestor referred to had been born out of wedlock. On the other hand, the Board found that the name had been used by very distant ancestors, for which reason the proposed change could not be considered appropriate.         Following the applicant's appeal the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 14 November 1990 (by 4 votes to 1) upheld the County Administrative Board's decision.   The Court stated:         "From the documents in the case it is established that [the       applicant's] ancestor, Mr. F. S...., born in ... 1764, was       the child of Mr. M. F. T...... and born out of wedlock.       However, merely for this reason the proposed name cannot be       considered to have belonged to [the applicant's] ancestors       in such an established way as prescribed in Section 10       para. 2 of the Surname Act.   Having regard to this as well       as to the reasons stated in the County Administrative       Board's decision .. there is no reason to change that       decision..."         The dissenting member stated, inter alia:         "From the documents in the case it is established that the       proposed name T..... has belonged in an established way to       the applicant's ancestors.   The fact that ... F., ...       starting from whom the surname of the applicant's ancestors       ... has been "S.....", was born out of wedlock, has no       legal relevance... (As) [the applicant] has established       that [his] present surname is causing [him] inconvenience       I quash the County Administrative Board's decision and       refer the case back for new examination."   Relevant domestic law         Under Section 10 of the Name Act (nimilaki, namnlagen; the title of the act amended by Act no. 253/91) a surname may be changed, if the applicant can show that the use of his present surname is causing him inconvenience because of its foreign origin, its meaning in common usage, its common appearance or for any other reason (para. 1); if the proposed surname has previously been used by himself or, in an established way, by his ancestors and provided the change may be considered appropriate (para. 2); or if a change of surname can be considered justified because of changed circumstances or for other particular reasons (para. 3).           Section 12 para. 1 provides that a surname commonly known as being used by a particular Finnish or foreign family cannot be approved as a new surname, unless there are a special reasons.         Under Section 13 para. 2 such a reason exists if the requested name is shown previously to have been lawfully used by the applicant or his ancestors.     COMPLAINTS   1.     The applicant complains that the refusal to grant him permission to have his surname changed violates his right to respect for his private life under Article 8 of the Convention.   He submits that his present name causes him great difficulties in his daily life, e.g. because of the pejorative nickname and delays in his mail.   The applicant further refers to the position of the Advisory Name Board, as made public by the Board itself, according to which the remote relationship between the applicant and his ancestors is not the only criterion to be considered, but that a request must be considered taking the circumstances as a whole into account.   2.     Although under Finnish law the applicant could take the name "Tavaststjerna" if he would marry somebody with that name he is not allowed to take that name back even though it has been used by his ancestors.   The fact that his ancestor was born out of wedlock has been considered to his detriment in the consideration of his request, although under Finnish law a child born out of wedlock may take the name of its father.   In this respect the applicant invokes Article 14 of the Convention.     THE LAW   1.     The applicant complains that the refusal to allow him to have his surname changed violates his right to respect for his private life under Article 8 (Art. 8) of the Convention. He submits that his present name is causing him inconveniences in his daily life.         Article 8 (Art. 8) of the Convention reads:         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."           The Government submit that whilst the legislation on names and the measures taken in accordance with that legislation are partially linked with the private life referred to in Article 8 para. 1 (Art. 8 1) of the Convention, in the case at issue there has been no interference with the applicant's right to respect for his private or family life.         Should the Commission consider Article 8 (Art. 8) of the Convention to be applicable in the present case the Government submit that the interference with the applicant's right was justified for the reasons set out in paragraph 2 of the provision. The refusal was based on sufficient and precise provisions in the Name Act and, thus, lawful. Moreover, it was made in the interests of national security, public safety and for the prevention of disorder or crime and the protection of the rights and freedoms of others.         In conclusion, having regard to the social control functions of the legislation and the aims expressly stated in the travaux preparatoires to the Name Act (Bill no. 236/84) the relevant provisions are fair and reasonable and have been appropriately and consistently applied.         The Government finally refer to the fact that many Contracting States have restrictions on the right to name changes similar to those applying in Finland.         The applicant contends that Article 8 (Art. 8) is applicable in his case. He has shown that his present name is causing him inconveniences. In the circumstances of the case the refusal violates his rights under that provision.         He further submits that, although accepting that the Name Act does not provide an absolute right to a name change, he is not trying to take just any name but a name proven to have been used by a direct ancestor. Although the Supreme Administrative Court found that the applicant's ancestor born in 1764 was the son of a Tavaststjerna that name was not considered to have belonged to the applicant's ancestors in an established way. However, it is clear from the documents that also the father of that Tavaststjerna carried that name. The prefix "Tavast" is well-known to Finns without knowledge of Swedish and appears in certain Swedish names still used in Finland.         As regards the purposes under Article 8 para. 2 (Art. 8-2) of the Convention allegedly justifying the refusal, the applicant submits that it has not even been argued by the Government that he requested the name change in order to disguise himself. The control function of the legislation on names has been excessively emphasised. The only relevant justification for restricting name changes would be the protection of the rights of others. However, in the present case the proposed name change would in no way infringe on the rights of others. Moreover, the wide-spread use of personal identity numbers decreases the State's interest in restricting the right to name changes. Criminal records and other social control measures are based on the personal identity number.         The applicant finally notes that the Government admit that the Name Act was not applied correctly in that the authorities did not consider the request under Section 10 para. 1 of the Act.         The Commission has proceeded to a preliminary examination of the complaint in the light of the parties' submissions. It considers that it raises questions of fact and law which are of such a complex nature that their determination requires an examination of the merits. The complaint cannot therefore be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.     The applicant further alleges that the refusal is discriminatory and, thus, in violation of Article 14 (Art. 14) of the Convention.         Article 14 (Art. 14) of the Convention reads:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         The Commission has found above that the complaint under Article 8 (Art. 8) of the Convention is admissible. As the complaint under Article 14 (Art. 14) of the Convention is linked to that complaint, it must also be declared admissible.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.        Secretary to the Commission       President of the Commission                  (H.C. KRÜGER)                     (C.A. NØRGAARD)